State v. Buell

• Decision Date: 19 February 1986
• Docket Number: No. 85-712,85-712
• Citation: 22 Ohio St.3d 124,22 OBR 203,489 N.E.2d 795
• Parties: , 22 O.B.R. 203 The STATE of Ohio, Appellee, v. BUELL, Appellant.
• Court: Ohio Supreme Court

Page 124

22 Ohio St.3d 124

489 N.E.2d 795, 22 O.B.R. 203

The STATE of Ohio, Appellee, v. BUELL, Appellant.

No. 85-712.

Supreme Court of Ohio.

Feb. 19, 1986.

Syllabus by the Court

1. The expert testimony of an experimental psychologist concerning the the variables or factors that may impair the accuracy of a typical eyewitness identification is admissible under Evid.R. 702.

2. The expert testimony of an experimental psychologist regarding the credibility of the identification testimony of a particular witness is inadmissible under Evid.R. 702, absent a showing that the witness suffers from a mental or physical impairment which would affect the witness' ability to observe or recall events.

On Saturday afternoon, July 17, 1982, eleven-year-old Krista Lee Harrison and a schoolmate collected aluminum cans in a ballpark ¹ across the street from Krista's home. Krista was kidnapped from that park in broad daylight and was never seen alive again.

The schoolmate, Roy Wilson, testified that while they were picking up cans, a maroon-colored van with bubble-type side windows entered the park. The van, which had white-lettered tires, was positioned to face the road. The sole occupant, a man with dark brown curly-hair, a long mustache and a big nose, got out. He walked over to the park bleachers and sat down near Krista's ten-speed bike. A few minutes later, Wilson saw Krista talking to the stranger. Wilson testified that he saw the man reach inside Krista's blouse several times and each time she would knock his hand away. When Krista got on her bike to leave, the man felt under her blouse again and whispered something into her ear. Krista began to cry, got off her bike and got into the van. She sat on the carpeted floor between two black seats. As the van drove off, Wilson rode Krista's bike from the park and alerted Krista's family. Her parents called the police.

Six days later, in a remote area of Holmes County, Ohio, Krista's body was found beside a shed on Township Road 464. An autopsy revealed that Krista had been viciously sexually assaulted by the thrusting of a rigid object against the inlet of her vagina and then strangled to death. Her feet were bound with a large piece of plastic and tape. Her hair and clothing showed the presence of orange carpet fibers.

During a search of the scene and surrounding area, several articles of clothing were found, including a man's pair of paint-spotted blue jeans and two gloves. The gloves showed the presence of orange carpet fibers. While police investigated on Township Road the next day, a George Dawson turned over to them a shirt, with a "Mike's Place" label, which he said he took from the road on July 23, 1982.

Evidence was also collected the next day along Fair Road in Wayne County, Ohio. This included a clump of hair, a blanket, a green garbage bag with tape on it, and two pieces of cardboard box with the shipping label sprayed over with black paint. Further investigation revealed that the shipping label read "Sears." There were orange carpet fibers on the blanket, the cardboard pieces and on hairs found on the blanket.

Daniel Cappy, a laboratory supervisor at the Bureau of Criminal Identification and Investigation ("BCI") in London, Ohio compared the carpet fibers removed from the evidence collected on Township and Fair Roads. The orange synthetic fibers matched in color, shape and material content. Comparisons were also made of hair removed from the evidence and a hair sample from Krista. The hairs matched in color, texture and microscopic characteristics.

In October 1982, investigation and testing by the police and the Federal Bureau of Investigation ("FBI") disclosed that the plastic found around Krista's feet and the cardboard pieces were packing materials used for van seats sold by Sears, Roebuck & Company. On or about November 3, 1982, the name of the appellant surfaced in a search through the records of purchasers of these seats. Receipts showed that the appellant purchased two of these seats just sixteen or seventeen days before Krista's abduction.

No other evidence linked the appellant with the murder until mid-October 1983 when he was arrested and charged with other crimes. Police executed search warrants at appellant's residence and removed, among other things, a roll of orange-colored carpeting, cans of blue and tan paint, interior and exterior paint samples, a newspaper article with Krista's picture in it dated August 9, 1983, a plaid shirt containing a "Mike's Place" label, black spray paint and a 1978 maroon Dodge van.

Independent testing by the BCI and FBI determined that carpet fibers from the van matched fibers found on Krista's clothes. The fibers on the blanket matched fibers from the appellant's van and residence. The paint samples were compared to the paint spots on the jeans. These tests determined the blue and tan paint samples matched those on the spotted jeans.

Arnold Seawell, director of technical services for the carpet division of J.P. Stevens Company, identified the orange-colored carpet taken from appellant's home and van. Seawell testified that only twelve thousand fifteen square yards of the carpeting were ever produced and of that only seventy-four yards were ever sent to Northern Ohio.

William Kaskey, the manager of the loan adjustment department of Centran Bank of Akron, testified that appellant had purchased the van on October 22, 1980 in a stripped condition. The van had round or oval bubble-shaped side windows and was burgundy in color. Kaskey also testified that although work to the van's exterior had been contemplated, it was still unpainted when he saw it again in 1983.

The appellant's nephew, Ralph Ross, Jr., lived with him from February through July 1982. Ross testified that during those months appellant installed orange-colored carpet in his van like that in his home, and two new black seats. Appellant also replaced the bubble windows with sliding square ones.

Two of appellant's neighbors, Jeff Withrow and Carl A. Calvert, also testified regarding changes to the van, Calvert stating that appellant made drastic changes within days after Krista's death. These neighbors described the vehicle as a maroon-colored Dodge van with white-lettered tires.

Finally, Warren Walfish, appellant's supervisor, testified that on the day Krista was kidnapped, appellant took three and one-half hours leave from work in the afternoon.

Appellant was indicted on November 15, 1983 and charged with two counts of aggravated murder, with specifications, ² three counts of kidnapping, ³ and three counts of felonious sexual penetration. ⁴ To avoid potential prejudicial pretrial publicity, the Court of Common Pleas of Wayne County granted appellant's motion for change of venue on March 1, 1984. A trial was held in the Court of Common Pleas of Cuyahoga County, ending April 4, 1984 with a jury verdict of guilty on all eight counts including the death penalty specifications.

During the sentencing phase, the jury recommended the death penalty upon finding beyond a reasonable doubt that the aggravating circumstances contained in the specifications to Counts I and II outweighed any mitigating factors. The trial court adopted the jury's recommendation and sentenced the appellant accordingly.

The court of appeals affirmed the conviction and sentence. The cause is now before this court on an appeal as a matter of right.

Keith A. Shearer, Pros. Atty., and Martin Frantz, Wooster, for appellee.

Burdon & Merlitti, James L. Burdon and Lawrence J. Whitney, Akron, for appellant.

DOUGLAS, Justice.

I

During the trial the prosecution introduced the testimony of three witnesses who claimed to have seen the appellant in the ballpark one week before the abduction, two witnesses who claimed to have seen the appellant in the park on the day Krista was kidnapped, and one who claimed to have seen the appellant leaving the site where the body was found.

The testimony of the ballpark witnesses was inconsistent and contradictory. The ballpark witnesses did not agree about whether one of them argued or merely conversed with a spectator, whether the spectator stood, sat or squatted, or whether one of the three of them had actually observed the spectator at all. Two of the three witnesses identified the appellant as the spectator only after seeing him on television and in the newspapers and only after discussing between themselves whether the appellant, as viewed on television, was the spectator they saw in the park some sixteen months earlier. Each of these witnesses testified that at most they observed the appellant for less than one minute.

Stephanie Baker, who also saw the abductor in the park, and Roy Wilson gave similar descriptions of Krista's kidnapper, but each selected the same incorrect picture from photo arrays which included the photo of appellant. Neither could identify the appellant in court.

The final identification witness, Donald J. Middleton, claimed to have seen a man driving a rasberry-colored car away from the shed where Krista's body was found. Middleton stated that he observed the man from his pick-up truck as they passed on opposite sides of the road. This observation lasted less than five seconds. The description Middleton gave to police included physical details significantly different from those of the appellant. When shown a photo array a few days after Krista's death, Middleton was not able to select anyone. Sixteen months later, Middleton identified the appellant when shown a picture of a van, the appellant and a car, and after seeing the appellant on television.

Appellant sought to introduce the testimony of an experimental psychologist, Steven Penrod, (1) with regard to factors involved in the mental processes of identifications generally, and (2) to render his opinion about the accuracy and credibility of the specific identification testimony of four of the witnesses. Upon the trial court's ruling that Penrod's testimony...